Should You Make Trivial Changes to Someone Else’s Draft Document?

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Keep an open mind – this is a little tricky. When you get someone’s draft document and proceed to embed your proposed changes, do you make changes that don’t change the terms, but change the way the document “hangs together”? Do you make what are, in essence, trivial changes – changes that may be seen as annoying (and perhaps insulting) or may be seen as welcome and helpful, perhaps even ones that the original draftsperson might adopt as her own in future deals? Let’s explain by way of some examples.

What kind of document comments might be considered “trivial”? How about conforming a document that uses both “(the “thing”) and (“thing”) so that it reads one way or the other, not both ways in the same document? That’s pretty trivial even though grammarians might ponder over whether it should be (a “thing”). OK, few (if any) would conform an adversary’s draft to one style or the other if that were the only comment being made, even though one would expect that, when reviewing an internally prepared document, the same reviewer would “fix” the document by making its style internally consistent. But, what do you do if you are making a lot of substantive comments and adding a lot of defined terms in the process. Which style do you use? What if (the “thing”) had been used three times and (“thing”) had been used fifty-four times?

Some other examples (and Ruminations invites you to submit your own): TENANT as contrasted with Tenant or Tenant; lists such as: a, b and c OR lists like: a; b; and c; x, y or z OR x, y, or z; “described on Exhibit A attached hereto” as contrasted with “described on Exhibit A; Exhibit A or EXHIBIT A or EXHIBIT A or Exhibit “A.”; ending a sentence with a quote, thusly: you may think this is the “end”. OR you may think this is the “end.”; Section 1.2. OR Section 1.2; or (a), (b), (c) OR (i), (ii), (iii). Keep in mind; we’re not necessarily talking about which alternative is “better” – in some cases that might be the question; in most cases we’re asking, “what do you do if the draft you got is “all over the place”? How about a document that mixes, without rhyme or reason: “ten (10)” and just plain “10” or “ten.” How about changing the frequently seen, but always wrong: ‘ten ($10.00) dollars” to the always correct: “ten dollars ($10.00)”? Do you change “ten and no/100 dollars” to just plain, and exactly correct: “ten dollars”?

Now, we’re not talking about making a change because you think the draft you received is ambiguous or vague. In such cases, no draftsperson should take offence (offence, in England). After all, if one craftsperson thinks something is unclear then, by my thinking, it is, by definition, unclear. And we’re probably not talking about whether one should correct grammar, such as changing an improper “which” to “that.” We’re talking about making the document look professional – cleaning it up. After all, when the deal is done, regardless of where the draft lease, contract, mortgage, certificate or whatever originated, the final document has two authors, and you are one of them. When the user, typically a client and sometimes “the boss,” reads the document, you get credit or blame for its “professionalism” or sloppiness.

Here are some guidelines that have never really worked out for me. Yes, my experience has been that no matter what I do, it will be wrong. Perhaps that feeds my philosophy that, if you can’t figure out what to do, do what makes YOU happy. That way, at least one of you will be happy. I think I have four rules. First, if you know making these kinds of changes will drive the other side bonkers, don’t make them. Second, if you are only making a handful of changes, leave well enough alone – you’ll spend more time looking for trivial things to change than it will be worth and the likelihood of your getting a hearty “thank you” is slim indeed. Third, if you are making a lot of comments and those comments require you to decide what “style” to use, go ahead and conform the rest of the document to whatever you chose. Lastly, absent a grossly deviant document drafting style, follow the author’s style even if it isn’t your own.

At the end of the day, how do you strike the balance between welcome and irritating? Is there a difference between a document that had only a few errors and inconsistencies (indicating that its author either “cared” or copied a good document) or if the document is rife with inconsistencies (and you don’t want to be thought of as its “author”)?

What do you do in your own practice? How do you feel when someone has “fixed” your proposed document? How do you react? Please share your thoughts at www.retailrealestatelaw.com.

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Comments

  1. I tend to follow the author’s style unless I find it a real burden on readability. Imposing my own style, in the absence of pressing need, is patronising if not rude, and tends to delay matters. It’s a distraction from real issues.

    When I was a bit younger I might have spent time correcting such stuff, especially when I was in-house and correcting outside counsel’s work, but I’m a lot more tolerant of trivialities these days (at the heady age of 45!).

  2. I agree with Ivan, some of it is about growing up. Early on as a young associate, I represented a Landlord with a national retailer opening a small shop in a strip center. I hated the tenant’s form just in the way it was put together. You could not find anything. So I put the puzzle together. Wrong! Looking back, I bet I delayed that deal a good couple of months. I can laugh now. I can also not get personally offended when someone does that to one of my national tenant’s forms. And then politely tell them, I “get it” but you can’t fix the form to your style if you want this tenant. In another deal recently, the first form by the other side stunk (as to form, was great as to middle ground legal substance) and by the end it got worse, but the real problem was people told a lot of stories. Every round. Every provision. So we ended up trading clauses in person and as we talked to nail each issue down. It was the rhythm of the deal and it worked. Will I cringe if I re-read it next year? Yes. Am I glad we managed to write the business terms at all? Yes. So, yes, I always want to fix the other inconsistencies. But I usually win the battle in my head before ticking off the other side. And when patronized with such changes back to me, sometimes I actually do thank them. Because usually time pressure, not lack of caring, is why it wasn’t perfect when it left my inbox. Cheers! And thanks for the excuse to re-live the war stories.

  3. If a contract does not need any substantive changes, it may be wise to avoid making superficial changes and thereby enable your client to take advantage of the maxim “contra proferentem”, in the event the meaning of the contract were to be litigated. That doctrine of judicial interpretation holds, of course, that an ambiguous term in a contract will be construed against the interests of the party that imposed it, i.e., the drafting party. Even if a contract provides that the contra proferentem rule will be given no effect, query what weight that provision will have if the non-drafting party had no say in its inclusion.

  4. Funny but in negotiating a lot of leases in my career, I’ve never encountered (or felt) resentment when trivial items are cleaned up and things made consistent. They are done routinely as one reads the lease, take very little time and are uncontroversial. It’s rare that a lease does not contain substantive issues as well so it all goes in with the wash (in my view).

  5. Overall, I think that the most important objectives are clarity and alignment of expectations. If the other side’s language leaves substantive and “mechanical” points unclear or vague then these problems need to be addressed. Nothing worse than having a client come back months or years down the road with complaints about the proper interpretation of provisions and economics. We all know that the “devil is in the details”. As for minor typos and poor style – I’m not worried about if the import and operation of the provision is readily clear.

  6. Yes, I do. With regularity.

    However, I usually only touch matters relating to function, the intended audience for the document and parallelism.

    Function. Grammar matters, and tacking on a contrary thought at the end with a “provided however, notwithstanding anything contained herein to the contrary” is usually sloppy and usually has unintended consequences. Be kind to your readers, please. There are actually real estate professionals, lease administrators, paralegals, accountants, auditors, trial lawyers (yes, Virginia, leases get litigated) and others that try to read, abstract, ponder and digest our collective jabberwocky. So, if it relates to signage, kindly put it in the Signage section. Or, for mercy’s-sake, please at least make a reference in the Signage section to the thought relating to signage that you insist shouldn’t go in the Signage section. After the lease lawyers are done, millions of dollars will change hands turning upon the fulcrum of the words used. Make the words, sentences and paragraphs functional, above all. If your elegance infringes meaning and clarity, then you mean to write poetry not leases.

    The intended audience includes me. When a business partner asks our team what the lease says about X situation, reading the entire lease and every word of the exhibits to answer the question is impractical and exhausting (I don’t bill by the hour). We must think of our audience. For example, use numbers and do the math now. If the rent, amount, fraction or date can be computed now, verified now and documented now, then it should be. Please do not leave to litigators the computation of ambiguous formulae, fractions or footages—please. When the numbers are actually computed as part of the negotiation, often the ambiguities hiding in the LOI come out! Get the meeting of the minds now, or, later, the lack of it may appear in the pleadings as Affirmative Defense No. 21 “No Contract Was Formed”.

    Parallelism. This is really just kindness to readers wearing its formal clothes. If there is a list of items, the heading used should steer the readers (those cutting and counting the checks, et al.) toward the relative importance or the inter-relation of the items. Example: If (a)… then result 123, or (b)… then result 456. If the modifier modifies only limited portion of the litany, then kindly use a subset list to make it clear. If the modifier modifies the entirety, then put it at the beginning to make this clear, too. I do not hesitate to rewrite these sorts of things.

    So many others have written so well on drafting skills, and I could not hope to add anything new. However, when drafting leases, let’s try to use words to minimize (eliminate) ambiguity. Oh… and I will always add “then” if a writer uses “if” and implies the “then”. A lease is not the place to imply anything, much less a dependent condition.

    Should you work with me or DSW Designer Shoe Warehouse, please whip this out and red-pen our stuff, too. How I receive suggestions for improvement might be a good litmus test for claimed humility. Bluntly: our form lease now sits at 44,684 words; I am sure many improvements await us.

    David

  7. Nicole Paul says:

    I am going to give the classic answer of “it depends”. I worked with a big-box tenant years ago and I could not stand the form. As their lawyer, I would have loved to have fixed it but with thousands of square feet under the same form, it would be counter-productive for the company to fix it. The organization of the document drove me crazy, as I am sure it did Landlord’s as well. I learned to grin and bear it.

    However, when I see terms like: “Premises”, leased Premises, Leased Premises, premises, demised Premises and Demised Premises and all the other variations with and without quotes all used in one document, none of which are defined – I can’t leave it alone. I have to fix it. Going down this path usually leads me into a whole bunch of other changes while I am at it.

    I don’t mind if someone corrects my work. I am usually more embarrassed that I didn’t catch it myself than angry. I have had a few people stomp their feet at changes I’ve made, but I find that this is typically with junior attorneys who have little experience and have been told to say “no” without regard to the actual comment being made – even if it means cleaning up a typo.

  8. Paige Velzeboer says:

    I think at times you really need to pick your battles. If you are looking at your drafting in a way to sure the correct deal points and clauses are a good marriage between the two parties, then you have done your job well. However, grammatical errors can have a way of biting you in the back if you are not careful as they have a way of seeping into your subconsciousness. So as long as you are keeping your eye on the ball which is drafting a solid contract that steers away from area’s that could be construed as ambiguous by a judge down the road, I think one should be open to hearing how you can improve on the template or contract because if it is just a quick fix–then we can agree and move onto the bigger issues at hand.

  9. I fix typos and grammar in a nonjudgmental way. I genuinely believe that we all have too much paper to deal with and we all make mistakes. Besides, I don’t want my client signing a document with obvious errors. Clients look at you like you are dumb and might not hire you the next time.

  10. I also tend to not mess with the drafter’s style except when the drafter’s chosen language makes the underlying concept difficult to understand. (My internal rule is that if I have to read a provision more than twice to understand it, I will propose revisions to make it clearer.) But I will point out bad section references, missing language, etc. – the sorts of things that can creep into a document when you’re re-using a form from a prior deal (which we all do). I’m also appreciative when adversaries point those things out in my own drafting. I try not to let my ego as a drafter get in the way of coming up with a document that accurately reflects the business deal and works for the client.

  11. Nadina Cole-Potter says:

    I am coming late to this discussion but I have to add my $.025. I was a commercial real estate paralegal for 15 years, am now and have been a commercial broker for 8 years, and became a developer two years ago. So I have three perspectives, the most recent being tenant representation of entrepreneurial companies with a new cash infusion, many of whom are moving out of the home office, garage or busines incubator into a first-time commercial lease.
    The last attorney I worked for wrote documents in a very down to earth, simple style which were models of clarity and well-thought out terms. He never hesitated to improve a document but was very diplomatic and in initial discussions with the other attorney, negotiated a mutual agreement to be collaborative and make the document as clear as possible.
    As a client, I will to read every word in a document in the first round, make corrections for meaning, and write copious notes and questions which I then transcribe and email to our attorney. We then walk through the document and the comments over the phone so I can get his thoughts and we can collaborate on how we will negotiate “hot items” with the other party or how he will approach the other attorney.
    As a tenant broker, I consider myself to be the tenant’s first line of defense against a landlord’s form and a protector of the health and longevity of the tenant’s business. Recently, I brokered a deal where the previous tenant had been in place over 15 years, the basic lease terms were fabulous, but it was apparent that the lease was a relic and had been cut and pasted over several iterations by non-attorneys. I spent a lot of time on the phone with the landlord’s in-house broker, talking him through a number of the unacceptable provisions, particularly those that would have been a risk to my client’s business continuation and those provisions which were in conflict with each other or were ambiguous as written. I knew the client’s business better than the attorney so I felt I was the best one to continue the negotiations. I think it was the verbal collaboration on improving the document and understanding the need for the changes that enabled us to get almost all of the changes we wanted, including a very sweet personal guarantee with stepped-down liability each year of the initial term and none for any subsequent renewal.

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